[R.O. 2009 §720.010; Ord. No. 2282 §1, 3-17-2008]
A. To the
extent permitted by the 2007 Video Services Providers Act, the Board
of Aldermen of the City of Higginsville hereby ratifies all existing
agreements, franchises and ordinances regulating cable television
operators and other video service providers, including the imposition
of a franchise fee of three percent (3%) imposed on the gross revenues
of all such providers and further declares that such agreements, franchises
and ordinances shall continue in full force and effect until expiration
as provided therein or until pre-empted by the issuance of video service
authorizations by the Missouri Public Service Commission or otherwise
by law, but only to the extent of said pre-emption.
B. It shall be unlawful for any person to provide video services, as defined in Section
720.020 hereof, within the City without either an agreement, franchise or ordinance approved by the City or a video service authorization issued by the Missouri Public Service Commission.
[R.O. 2009 §720.020; Ord. No. 2282 §1, 3-17-2008]
A. Definitions. The following terms shall have the following
meanings unless otherwise defined by context:
FRANCHISE AREA
The total geographic area authorized to be served by an incumbent
cable operator in a political subdivision as of August 28, 2007, or,
in the case of an incumbent local exchange carrier, as such term is
defined in 47 U.S.C. Section 251(h), or affiliate thereof, the area
within such political subdivision in which such carrier provides telephone
exchange service.
GROSS REVENUES
The total amounts billed to subscribers or received from
advertisers for the provision of video services within the City, including:
1.
Recurring charges for video service,
2.
Event-based charges for video service including, but not limited
to, pay-per-view and video- on-demand charges,
3.
Rental of set top boxes and other video service equipment,
4.
Service charges related to the provision of video service including,
but not limited to, activation, installation, repair and maintenance
charges,
5.
Administrative charges related to the provision of video service
including, but not limited to, service order and service termination
charges, and
6.
A pro rata portion of all revenue derived, less refunds, rebates
or discounts, by a video service provider for advertising over the
video service network to subscribers, where the numerator is the number
of subscribers within the City and the denominator is the total number
of subscribers reached by such advertising; but gross revenues do
not include:
a.
Discounts, refunds and other price adjustments that reduce the
amount of compensation received by a video service provider,
d.
Amounts billed to subscribers to recover taxes, fees or surcharges
imposed on subscribers or video service providers in connection with
the provision of video services including the video service provider
fee authorized herein,
e.
Fees or other contributions for PEG or I-Net support, or
7.
Charges for services other than video service that are aggregated
or bundled with amounts billed to subscribers, provided the video
service provider can reasonably identify such charges on books and
records kept in the regular course of business or by other reasonable
means.
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Except with respect to the exclusion of the video service provider
fee, gross revenues shall be computed in accordance with generally
accepted accounting principles.
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HOUSEHOLD
An apartment, a house, a mobile home or any other structure
or part of a structure intended for residential occupancy as separate
living quarters.
LOW INCOME HOUSEHOLD
A household with an average annual household income of less
than thirty-five thousand dollars ($35,000.00) as determined by the
most recent decennial census.
PERSON
An individual, partnership, association, organization, corporation,
trust or government entity.
SUBSCRIBER
Any person who receives video services in the franchise area.
VIDEO SERVICE
The provision of video programming provided through wireline
facilities located at least in part in the public right-of-way without
regard to delivery technology, including Internet protocol technology
whether provided as part of a tier, on demand, or a per-channel basis.
This definition includes cable service as defined by 47 U.S.C. Section
522(6), but does not include any video programming provided by a commercial
mobile service provider defined in 47 U.S.C. Section 332(d), or any
video programming provided solely as part of and via a service that
enables users to access content, information, electronic mail, or
other services offered over the public Internet.
VIDEO SERVICE AUTHORIZATION
The right of a video service provider or an incumbent cable
operator that secures permission from the Missouri Public Service
Commission pursuant to Sections 67.2675 to 67.2714, RSMo., to offer
video service to subscribers.
VIDEO SERVICE NETWORK
Wireline facilities, or any component thereof, located at
least in part in the public right-of-way that deliver video service,
without regard to delivery technology, including Internet protocol
technology or any successor technology. The term "video service
network" shall include cable systems.
B. General Regulations.
1. A video
service provider shall provide written notice to the City at least
ten (10) days before commencing video service within the City. Such
notice shall also include:
a. The
name, address and legal status of the provider;
b. The
name, title, address, telephone number, e-mail address and fax number
of individual(s) authorized to serve as the point of contact between
the City and the provider so as to make contact possible at any time
(i.e., twenty-four (24) hours per day, seven (7) days per week); and
c. A
copy of the provider's video service authorization issued by the Missouri
Public Service Commission.
2. A video
service provider shall also notify the City, in writing, within thirty
(30) days of (a) any changes in the information set forth in or accompanying
its notice of commencement of video service or (b) any transfer of
ownership or control of the provider's business assets.
3. A video
service provider shall not deny access to service to any group of
potential residential subscribers because of the race or income of
the residents in the area in which the group resides. A video service
provider shall be governed in this respect by Section 67.2707, RSMo.,
and as the same is amended. The City may file a complaint in a court
of competent jurisdiction alleging a germane violation of this Subsection,
which complaint shall be acted upon in accordance with Section 67.2711,
RSMo., and as the same is amended.
4. A video
service provider shall comply with all Federal Communications Commission
requirements involving the distribution and notification of emergency
messages over the emergency alert system applicable to cable operators.
Any video service provider other than an incumbent cable operator
serving a majority of the residents within a political subdivision
shall comply with this Section by December 31, 2007.
5. A video
service provider shall, at its sole cost and expense, indemnify, hold
harmless and defend the City, its officials, boards, board members,
commissions, commissioners, agents and employees against any and all
claims, suits, causes of action, proceedings and judgments ("claims")
for damages or equitable relief arising out of (i) the construction,
maintenance, repair or operation of its video services network, (ii)
copyright infringements, and (iii) failure to secure consents from
the owners, authorized distributors or licenses or programs to be
delivered by the video service network. Such indemnification shall
include, but is not limited to, the City's reasonable attorneys' fees
incurred in defending against any such claim prior to the video service
provider assuming such defense. The City shall notify the provider
of a claim within seven (7) business days of its actual knowledge
of the existence of such claim. Once the provider assumes the defense
of the claim, the City may at its option continue to participate in
the defense at its own expense. This indemnification obligation shall
not apply to any claim related to the provision of public, educational
or governmental channels or programming or to emergency interrupt
service announcements.
C. Video Service Provider Fee.
1. Each
video service provider shall pay to the City a video service provider
fee in the amount of three percent (3%) of the provider's gross revenues
on or before the last day of the month following the end of each calendar
quarter. The City may adjust the video service provider fee as permitted
in Section 67.2689, RSMo., and as the same is amended.
2. A video
service provider may identify and pass through on a proportionate
basis the video service provider fee as a separate line item on subscribers'
bills.
3. The
City, not more than once per calendar year and at its own cost, may
audit the gross revenues of any video service provider as provided
in Section 67.2691, RSMo., and as the same is amended. A video service
provider shall make available for inspection all records pertaining
to gross revenues at the location where such records are kept in the
normal course of business.
D. Customer Service Regulations.
1. For
purposes of this Subsection, the following terms shall mean:
NORMAL BUSINESS HOURS
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, the term "normal business
hours" must include some evening hours at least one (1) night per
week or some weekend hours.
NORMAL OPERATING CONDITIONS
Those service conditions which are within the control of
the video service provider. Those conditions which are not within
the control of the video service provider include, but are not limited
to, natural disasters, civil disturbances, power outages, telephone
network outages and severe or unusual weather conditions. Those conditions
which are ordinarily within the control of the video service provider
include, but are not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods and
maintenance or upgrade of the video system.
2. All
video service providers shall adopt and abide by the following minimum
customer service requirements:
a. Video
service providers shall maintain a local, toll-free or collect call
telephone access line which may be available to subscribers twenty-four
(24) hours a day, seven (7) days a week.
b. Video
service providers shall have trained company representatives available
to respond to customer telephone inquiries during normal business
hours. After normal business hours, the access line may be answered
by a service or an automated response system, including an answering
machine. Inquiries received after normal business hours shall be responded
to by a trained company representative on the next business day.
c. Under
normal operating conditions, telephone answer time by a customer representative,
including wait time, shall not exceed thirty (30) seconds when the
connection is made. If the call needs to be transferred, transfer
time shall not exceed thirty (30) seconds. These standards shall be
met no less than ninety percent (90%) of the time under normal operating
conditions measured on a quarterly basis.
d. Under
normal operating conditions, the customer will receive a busy signal
less than three percent (3%) of the time.
e. Customer
service centers and bill payment locations shall be open at least
during normal business hours and shall be conveniently located.
f. Under
normal operating conditions, each of the following standards shall
be met no less than ninety-five percent (95%) of the time measured
on a quarterly basis:
(1) Standard installations shall be performed within seven (7) business
days after an order has been placed. "Standard" installations are
those that are located up to one hundred twenty-five (125) feet from
the existing distribution system.
(2) Excluding conditions beyond the control of the operator, the video
service provider shall begin working on "service interruptions" promptly
and in no event later than twenty-four (24) hours after the interruption
becomes known. The video service provider must begin actions to correct
other service problems the next business day after notification of
the service problem.
(3) The "appointment window" alternatives for installations, service
calls and other installation activities will be either a specific
time or, at maximum, a four (4) hour time block during normal business
hours. The operator may schedule service calls and other installation
activities outside of normal business hours for the express convenience
of the customer.
(4) A video service provider shall not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled
appointment.
(5) If a video service provider's representative is running late for
an appointment with a customer and will not be able to keep the appointment
as scheduled, the customer must be contacted. The appointment shall
be rescheduled, as necessary, at a time convenient for the customer.
g. Refund
checks shall be issued promptly, but no later than either (a) The
customer's next billing cycle following resolution of the request
or thirty (30) days, whichever is earlier, or (b) Upon the return
of the equipment supplied by the video service provider if the service
is terminated.
h. Credits
for service shall be issued no later than the customer's next billing
cycle following the determination that a credit is warranted.
i. Video
service providers shall not disclose the name or address of a subscriber
for commercial gain to be used in mailing lists or for other commercial
purposes not reasonably related to the conduct of the businesses of
the video service provider or its affiliates, as required under 47
U.S.C. Section 551, including all notice requirements. Video service
providers shall provide an address and telephone number for a local
subscriber to use without toll charge to prevent disclosure of the
subscriber's name or address.
j. As
required by Section 67.2692(D)(2)(d), RSMo., above shall be enforced
only as follows:
(1) Each video service provider shall implement an informal process for
handling inquiries from the City and customers concerning billing
issues, service issues and other complaints. If an issue is not resolved
through this informal process, the City may request a confidential
non-binding mediation with the video service provider, with the costs
of such mediation to be shared equally between the City and the video
service provider.
(2) In the case of repeated, willful and material violations of the provisions
of this Section by a video service provider, the City may file a complaint
on behalf of a resident harmed by such violations with Missouri's
Administrative Hearing Commission seeking an order revoking the video
service provider's Public Service Commission authorization. The City
or a video service provider may appeal any determination made by the
Administrative Hearing Commission under this Section to a court of
competent jurisdiction which shall have the power to review the decision
de novo. The City shall not file a complaint seeking revocation unless
the video service provider has been given sixty (60) days' notice
to cure alleged breaches but has failed to do so.
E. Public, Educational And Government Access Programming.
1. Each
video service provider shall designate the maximum number of channels
for non-commercial public, educational or governmental ("PEG") as
required by Sections 67.2675 to 67.2714, RSMo.
2. Any
PEG channel that is not substantially utilized by the City may be
reclaimed and programmed by the video service provider at the provider's
discretion. If the City finds and certifies that a channel that has
been reclaimed by a video service provider will be substantially utilized,
the video service provider shall restore the reclaimed channel within
one hundred twenty (120) days. A PEG channel shall be considered "substantially
utilized" when forty (40) hours per week are locally programmed on
that channel for at least three (3) consecutive months. In determining
whether a PEG channel is substantially utilized, a program may be
counted not more than four (4) times during a calendar week.
3. The
operation of any PEG access channel and the production of any programming
that appears on each such channel shall be the sole responsibility
of the City or its duly appointed agent receiving the benefit of such
channel, and the video service provider shall bear only the responsibility
for the transmission of the programming on each such channel to subscribers.
The City must deliver and submit to the video service provider all
transmissions of PEG content and programming in a manner or form that
is capable of being accepted and transmitted by such video service
provider holder over its network without further alteration or change
in the content or transmission signal. Such content and programming
must be compatible with the technology or protocol utilized by the
video service provider to deliver its video services. The video service
provider shall cooperate with the City to allow the City to achieve
such compatibility.
4. The
City shall make the programming of any PEG access channel available
to all video service providers in a non-discriminatory manner. Each
video service provider shall be responsible for providing the connectivity
to the City's or its duly appointed agent's PEG access channel distribution
points existing as of August 27, 2007. Where technically necessary
and feasible, video service providers shall use reasonable efforts
and shall negotiate in good faith to interconnect their video service
networks on mutually acceptable rates, terms and conditions for the
purpose of transmitting PEG programming. A video service provider
shall have no obligation to provide such interconnection to a new
video service provider at more than one (1) point per headend, regardless
of the number of political subdivisions served by such headend. The
video service provider requesting interconnection shall be responsible
for any costs associated with such interconnection, including signal
transmission from the origination point to the point of interconnection.
Interconnection may be accomplished by direct cable microwave link,
satellite or other reasonable method of connection acceptable to the
person providing the interconnect.
5. The
franchise obligation of an incumbent cable operator to provide monetary
and other support for PEG access facilities existing on August 27,
2007 shall continue until the date of franchise expiration (ignoring
any termination by notice of issuance of a video service authorization)
or January 1, 2012, whichever is earlier. Any other video service
provider shall have the same obligation to support PEG access facilities
as the incumbent cable operator, but if there is more than one (1)
incumbent, then the incumbent with the most subscribers as of August
27, 2007. Such obligation shall be pro-rated, depending on the nature
of the obligation, as provided in Section 67.2703.8, RSMo. The City
shall notify each video service provider of the amount of such fee
on an annual basis, beginning one (1) year after issuance of the video
service authorization.
6. A video
service provider may identify and pass through as a separate line
item on subscribers' bills the value of monetary and other PEG access
support on a proportionate basis.
F. Compliance With Other Regulations. All video service providers
shall comply with the right-of-way use and zoning regulations established
in this Chapter and with all other applicable laws and regulations.
[R.O. 2009 §720.030; Ord. No. 2282 §1, 3-17-2008]
Any person found guilty of violating any provision of this Chapter
shall be punished by a fine not to exceed five hundred dollars ($500.00)
or by imprisonment not to exceed ninety (90) days, or by both such
fine and imprisonment, and each day the violation continues shall
constitute a separate offense.